Singh, Baldev v Minister for Immigration & Ethnic Affairs [1996] FCA 495

CATCHWORDS

IMMIGRATION - Decision not to grant refugee status - Affirmed by Refugee Review Tribunal - Whether Tribunal's findings manifest reviewable error - Use by Tribunal of material in earlier proceedings - Approach adopted by Tribunal in determining whether the applicant had a well founded fear of being persecuted - Tribunal's consideration of the attitude of Indian government to marriage ceremonies conducted by Sikh priests - "persecution for reasons of religion".

Migration Act 1958: s 476

Migration Reform Act 1992: s 39

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Wee v Minister for Immigration and Ethnic Affairs v Mok (1995) 57 FLR 432

Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375

Guo Wei Rong v Minister for Immigration and Ethnic Affairs, Full Court, Federal Court, 26 February 1996, unreported

Minister for Immigration and Ethnic Affairs v Wu Shan Liang, High Court, 27 May 1996, unreported

Singh v Minister for Immigration and Ethnic Affairs, Branson J, 29 April 1996, unreported

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Attorney-General for the State of Victoria v The Commonwealth of Australia (1962) 107 CLR 529

Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116

No. NG 82 of 1995

BALDEV SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J

SYDNEY

21 JUNE 1996

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 82 of 1995

)

GENERAL DIVISION )

BETWEEN: BALDEV SINGH

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 21 June 1996

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant to pay the respondent's costs except for those costs dealt with in order 3.

3. Mr David de Pinna pay the applicant's costs and the respondent's costs occasioned by the adjournment of the application on 1 March 1996.

4. Liberty to Mr de Pinna and the parties to apply.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 82 of 1995

)

GENERAL DIVISION )

BETWEEN: BALDEV SINGH

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 21 June 1996

REASONS FOR JUDGMENT

This is an application by Baldev Singh ("the applicant") for review by this Court under s476 of the Migration Act 1958 ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal") of 18 January 1995 affirming a decision of a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") to refuse to grant the applicant a protection visa on the basis he was a refugee. The character of the application as an application for a protection visa is imputed by the Migration Reform Act 1992 ("the Reform Act"): see s39.

The applicant was, at the time of the Tribunal's decision, 35 years old. He is married and an Indian National who arrived in Australia on 7 August 1993. He is a Sikh. He left India for Jordan in 1985 after a period of civil unrest in the Punjab during which Sikhs had been killed and persecuted. When in Jordan he conducted religious services as a Sikh priest.

After entry into Australia the applicant made application for the grant of refugee status on 13 August 1993 and this application was refused on 31 August 1993. He sought a review of that decision and on 4 February 1994 the Tribunal published a decision affirming the decision to refuse to determine the applicant's status as that of refugee. A further decision of the Tribunal on 24 June 1994 affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Domestic Protection (Temporary) Entry Permit.

On 13 July 1994 the applicant lodged a fresh application both for a Protection (Permanent) Entry Permit and the grant of refugee status. Both these applications were refused on 23 August 1994 by a delegate of the Minister and a review of them by the Tribunal was sought by the applicant. The Tribunal decided on 18 January 1995 to affirm the decisions the subject of review though together they were to be treated as a decision to refuse a protection visa having regard to s39 of the Reform Act. It is that decision which is the subject of these proceedings.

It was not in issue in these proceedings that s476 of the Act identifies the grounds upon which the Tribunal's decision might be reviewed in this Court. Three grounds were identified each based on s476(1)(e) which provides:

"476(1) subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:

(a) ...

(b) ...

(d) ...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the fact as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) ..."

The amended application set out the three grounds in the following terms:

"(1) The Tribunal erred in law in treating the decisions of the Tribunal given on 4.2.94 and 24.6.94 as being correct.

(2) The Tribunal erred in law in requiring that there be "objective evidence" to support the applicant's claims before finding that the applicant faced a real chance of persecution upon return to India for reasons of his religion.

(3) The Tribunal erred in failing to apply the law to the facts of the case in that the Tribunal did not consider whether the denial of marriage under Sikh practice or law amounts to persecution for reasons of religion."

The first ground involved the use made by the Tribunal of the power conferred by s416 of the Act. Section 416 provides:

"If a non-citizen who has made:

(a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b) application for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

The member of the Tribunal who made the decisions of 4 February 1994 and 24 June 1994 also made the decision of 18 January 1995. In the decision of 18 January 1995 the Tribunal invoked the provisions of s416 and said:

"The Tribunal is aware that the Applicant has made application for review of RRT-reviewable decisions that have been determined by the Tribunal and has now made a further application for review of an RRT-reviewable decision.

Except insofar as it bears upon new claims and new information before the Tribunal, for the purposes of this review the Tribunal does not intend to consider any information considered in relation to the Applicant's earlier application. In reliance on s.416 of the Act, the Tribunal has regard to, and takes to be correct, the decisions that the Tribunal previously made about or because of that information."

Counsel for the applicant submitted that the power conferred by s416 must be exercised in a way that ensures that the Tribunal will still address the issue raised by the application for review. In this case that issue, in substance, is whether the applicant is a refugee. The consideration of that matter may require the evaluation of activities of the applicant over a period of time which are cumulative in their effect: see Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 580. Thus, it was submitted, the Tribunal cannot, in reliance on s416, consider a further matter raised by the review and disregard matters earlier raised and considered in earlier decisions of the Tribunal if all those matters, when considered cumulatively, might result in a determination that the applicant was a refugee.

The scope of the power conferred by s416 is a matter that need not be determined in these proceedings. The issue raised by the applicant can be resolved by reference to the way the Tribunal went about evaluating the material it had considered in earlier proceedings. It is to be noted that the Tribunal prefaced the use it proposed to make of its earlier decision, in reliance on the power conferred by s416, by the words "except insofar as it bears upon new claims and new information". This is plainly an intimation by the Tribunal that it would not ignore earlier information but rather would pay regard to it to the extent that it was relevant in assessing new claims and new information made and provided by the applicant which bore upon the issue of whether he was a refugee. It is plain from a reading of the decision of 18 January 1995 as a whole that the Tribunal did not restrict its consideration of the applicant's status by reference to facts or information arising only during the prosecution of the second application by the applicant. Indeed one of the matters that the applicant points to in support of another ground which is dealt with shortly, is what the Tribunal described as "unsubstantiated evidence he had provided to the Tribunal at a previous hearing". In the conclusion found in the penultimate paragraph of its reasons for decision the Tribunal said:

"The Tribunal has considered the Applicant's new claims, through his evidence and the submissions of his various representatives. It finds that those claims, even when considered cumulatively with his previous claims, do not provide the applicant with a basis for a well-founded fear of persecution."

A comparison of what was said by the Tribunal in its decision of 4 February 1994 with what it said in its decision of 18 January 1995 does not disclose that the Tribunal failed to pay regard to what had earlier been put by the applicant in the first review when considering the second application for review. The contrary is the case. The exercise of the power conferred by s416 did not involve an error of law.

The second ground relied upon by the applicant concerns the view expressed by the Tribunal that there was no objective evidence of a particular matter. This is a reference to the following passage from the Tribunal's decision of 18 January 1995 in a section headed "Consideration of the Applicant's Claims to lack of Religious freedom":

"Independent evidence before the Tribunal from DFAT, an expert [academic] and the U.S. State Department Country Reports on Human Rights Practices 1993 leads to the Tribunal to conclude that Sikhs are not persecuted as a consequence of their religion.

At no time has the Applicant claimed he was arrested or detained for religious reasons or for performing duties as a priest, in any other guise in the gurdwara or in the course of practising his religion. Since there is no objective evidence to indicate that any persecution has occurred to priests in the Punjab solely for carrying out religious duties the Tribunal finds that there is no real chance of persecution occurring to the Applicant for religious reasons." (emphasis added)

This passage appears at a point in which the Tribunal was considering whether there was any prospect that the applicant would be unable to carry out his role as a Sikh priest if he were to return to India. The Tribunal had earlier referred in its decision to information it had which suggested that Sikh priests were not precluded from conducting religious ceremonies. The only contrary evidence was material provided
by the applicant in the earlier proceedings. Earlier in its decision of 18 January 1995 in the same section the Tribunal said the following about the evidence given in the earlier proceedings:

"The Applicant claimed that Sikhs are denied religious freedom and that the political goal of seeking a separate state of Khalistan is an expression of his religious faith. He stated that he was at risk as a priest but apart from unsubstantiated evidence he had provided to the Tribunal at a previous hearing there was nothing before the Tribunal which indicated that Sikh priests are at risk for carrying out religious duties in the Punjab." (emphasis added)

This was a reference to evidence which was summarised in the Tribunal's decision of 4 February 1994 as follows:

"In addition to his work in the leather business, the Applicant said he had been active religiously with the Sikhs in Jordan and had contributed to building a Sikh temple, Gurdwara, there. He said that he had conducted religious services there as a priest. He claimed that priests in Punjab were at risk as he had heard on a radio broadcast that one priest had been arrested while conducting services in a Gurdwara. When he was asked how he knew this, he said that he had heard this on radio news while in Australia but could not provide further details."

These matters were being addressed by the Tribunal in the more general context of considering whether the applicant had a "well founded fear of being persecuted for reasons of ... religion" which is the relevant part, for present purposes, of the definition of refugee in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.

The Tribunal had earlier in its reasons for decision discussed, in a section headed "The Law", the approach to be adopted when considering whether the applicant had a well founded fear having regard to the decision of the High Court
in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal said:

"The Court in Chan's case held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (at 389 and supported at 398, 407 and 429). It was observed that the expression "'a real chance' ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ..." (at 389) and though it "does not weigh the prospects of persecution ... it discounts what is remote or insubstantial" (at 407). Therefore, a real chance of persecution may exist notwithstanding that there is less than a 50 percent chance of persecution occurring (at 398).

On its face, this fairly represents the approach emerging from the High Court's decision in Chan. However the issue raised in these proceedings is whether it was adopted by the Tribunal in its subsequent consideration of the material in the application before it. It is not a novel issue and has recently been considered by a Full Court of this Court in Wu v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432. The issue was earlier considered by a Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375 especially 404 - 409 per Sheppard J and also arose in Guo Wei Rong v Minister for Immigration and Ethnic Affairs, Full Court of the Federal Court, 26 February 1996, unreported.

However these authorities have been overtaken by the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, 27 May 1996, unreported upholding an appeal from the first decision of the Full Court of the Federal Court earlier referred to. The High Court makes plain that the approach adopted by the Full Court was too stringent in its effect.

In the present case the Tribunal had considered whether there was a genuine fear founded on a real chance of persecution. The Tribunal did not indicate that it disbelieved the applicant's evidence that he heard a radio report or that it considered that the report itself was false. Had the Tribunal said it did not accept the applicant as a credible witness, either on that matter or generally, then it would undoubtedly have been entitled to treat the evidence concerning the radio broadcast as of no probative value: see Singh v Minister for Immigration and Ethnic Affairs, Federal Court of Australia, 29 April 1996, unreported, Branson J. However it did not do so expressly.

Nonetheless the decision of the Tribunal must be approached in accordance with settled principles. As Brennan CJ and Toohey, McHugh and Gummow JJ said in their joint judgment in Wu Shan Liang (supra) of these principles:

"They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."

What, in effect, the Tribunal was indicating in the present case was that it did not accept that the evidence of the applicant about the radio broadcast was material upon which any weight could be placed. Thus, the only evidence it viewed as being of substance was what the Tribunal earlier described as the independent evidence. The evidence of substance it described in its concluding remarks as "objective evidence". It did not include the evidence given by the applicant. While the Tribunal could have expressed its opinion more clearly, it is reasonably clear that reading the relevant parts of its decision as a whole, it was discounting entirely the evidence of the applicant. This it was entitled to do. In my opinion, in adopting this approach to the material, the Tribunal did not fail to assess the position of the applicant in the way contemplated by Chan.

The third ground concerned the consideration by the Tribunal of the attitude of the Indian government to marriage ceremonies conducted by Sikh priests. In a submission by the Sikh Council of Australia quoted, in part, by the Tribunal it was said that:

"Sikh marriage ceremonies are not legal in India. A Sikh either has a Hindu marriage or a court marriage".

The Tribunal had earlier quoted a statement of a Professor Jeffries, in which he said:

"I know of no evidence to suggest that Gurdwaras in the state are inhibited about the performing of any religious ceremonies."

The Tribunal deals with this material in the following way:

"The Sikh Council of Australia has submitted that Sikh marriages are not recognised and that Sikhs must marry under Hindu or state ceremonies."

It appears that the Tribunal proceeded on the basis that Sikh marriage ceremonies may be performed but they have no legal effect. That approach is one that was open on the material though it may be accepted that the submission of the Sikh Council of Australia might have been viewed as suggesting those ceremonies cannot be conducted at all.

The point raised by the applicant was that even if the material before the Tribunal permitted it to proceed on that basis, it nonetheless failed to consider the consequences of the applicant being unable to perform a marriage ceremony that had any legal effect or recognition. It was a matter, it was submitted, that might evidence persecution. I assume, for present purpose, that an error of law might be manifest by this alleged failure of the Tribunal to consider a matter evidencing persecution on the basis that it might involve a misapprehension of what is a refugee as that concept is imported into the Migration Regulations: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. It may involve an incorrect interpretation of the applicable law: see s476(1)(e) of the Act.

It may be accepted that what is comprehended by the notion of a "well-founded fear of being persecuted for reasons of ..... religion" should not be viewed narrowly: see the observations of Sheppard J in Mok. One of the matters the Court was called upon to consider in Mok was the way in which the Tribunal dealt with evidence concerning restrictions that had been imposed on the applicant in relation to the practice of her religion. Sheppard J said at 408:

"...Nor do I understand why a restriction on the right to practice a religion as distinct from forbidding the practice of it altogether does not itself constitute persecution or may not constitute persecution in a given set of circumstances".

What constitutes persecution more generally was discussed by the High Court in Chan (supra): see especially Mason CJ at 388, Dawson J at 399-400 and McHugh J at 429.

However I do not view the fact, if it be the fact, that the Indian government does not give legal recognition to marriage ceremonies conducted by Sikh priests as a matter falling within what might be comprehended by persecution for reasons of religion.

Freedom of religion can exist when there is regulation by the state of matters as part of the proper government of a community. In Australia, for example, the constitutional protection afforded by s116 does not preclude the making of laws which will promote the peace order and good government of Australia: see Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 especially per Latham CJ at 132. In so far as laws might be made concerning marriage, it is ordinarily a matter for the state to determine how marriages are to take place that are legally effective at least for the purposes of domestic law. The 1976 Hague Convention on Celebration and Recognition of the Validity of Marriages proceeds on the basis that the law of a contracting
state governs the formal requirements for marriage. In Australian domestic law, the Commonwealth Parliament may regulate the primary aspects of marriage including and "forms and requisites of a valid marriage" and the "conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities": see Attorney-General for the State of Victoria v The Commonwealth of Australia (1962) 107 CLR 529 at 560 per Taylor J and 579 per Windeyer J.

As is apparent from The Law of Refugee Status, J C Hathaway, 1991, Butterworths at 145-148, persecution for reasons of religion concerns interference with or placing limits on an individuals right to adopt and adhere to a religion and to live in accordance with it. The failure of a state to clothe a religious ceremony with legal consequences does not, in my opinion, of itself evidence persecution. The manner in which the Tribunal dealt with the status of Sikh marriages does not, in my opinion, disclose an error of law in the more general consideration of whether the applicant had a well founded fear of persecution for reasons of religion.

The applicant has not demonstrated an error of the type referred to in s476 of the Act as particularised in the amended application. Accordingly, the application should be dismissed.

This leads to a consideration of what order should be made as to costs. The matter was first listed for hearing before me on 4 December 1995. Counsel for the applicant was then a Mr David de Pinna. It was plain from the opening by Mr de Pinna that the applicant's case depended upon proof in this Court of the evidence that had been given by the applicant to the Tribunal. The transcript of the proceedings was not in evidence nor was there any other evidence proving what had occurred before the Tribunal. Thus the case that was opened by Mr de Pinna was doomed to fail. I drew this matter to Mr de Pinna's attention with the result that he applied for an adjournment to enable a transcript to be prepared. It was agreed that the respondent's costs thrown away by the adjournment would be met by the applicant and it was agreed between counsel that those costs were $1,800. I listed the matter for hearing on 1 March 1996.

A transcript was subsequently prepared and annexed to an affidavit filed on 15 January 1996. Written submissions prepared by Mr de Pinna were filed on 22 January 1996. Both the affidavit and written submissions were filed as a result of a direction I had given on 4 December 1995.

On the morning of 1 March 1996 Mr Rose, who had been instructing Mr de Pinna, appeared for the applicant. He informed me that he had been contacted by Mr de Pinna early that morning by phone and apparently from London. This was the first notice Mr Rose had that Mr de Pinna would not appear. While Mr Rose said he would, if he had to, conduct the case, he plainly was not really in a position to do so. The case had been framed by Mr de Pinna.

The question then arose as to what should happen and in due course an application was made, on the afternoon of 1 March 1996, by Mr Craddock of counsel who had then only been briefed for the purposes of making the adjournment application. He had been briefed late in the morning of that day. It appeared to me that the appropriate course was to adjourn the matter having regard to the possible consequences on the applicant of the apparent dereliction by Mr de Pinna of his professional obligations.

Before adjourning I indicated that I was disposed to ordering Mr de Pinna to pay personally the costs thrown away by that adjournment. I asked Mr Rose to take steps to inform Mr de Pinna that that might occur. While Mr Rose has, since then, sworn an affidavit identifying attempts he has made to inform Mr de Pinna of what might occur, I am not be satisfied that Mr de Pinna knows that I said an order might be made requiring him to pay the costs of the adjournment. Nonetheless he must have apprehended the possibility of such an order being made having regard to his role in the extraordinary events of 1 March 1996.

I propose to order that Mr de Pinna pay the costs of both the applicant and the Minister resulting from the adjournment occasioned by his failure to appear as briefed on 1 March 1996. However I propose to make the order conditional in the sense that it will give him liberty to apply to the Court to have the order varied or revoked within 21 days of the order being served on him. As to the costs of the proceedings more generally I propose to order that the applicant pay the respondent's costs save for the costs ordered to be paid by Mr de Pinna. I follow this course because the applicants case, as developed by Mr Craddock, bore little resemblance to the case that the applicant had, till 1 March 1996, been advancing and the respondent had, to that date, been called upon to meet. It was, as best I can discern from a perusal of the written submissions prepared by Mr de Pinna, a case of little, if any, substance. The respondent incurred costs in resisting a case that was never put. As to the case put by Mr Craddock, it did not succeed. The ordinary rule should apply.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate: ......................

Dated: 21 June 1996

APPEARANCES

Counsel for the Applicant: Mr G Craddock

Solicitor for the Applicant: Michael J Rose & Co

Counsel for the Respondent: Mr R Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 25 March 1996

Written Submissions Complete: 5 June 1996

Judgment Date: 21 June 1996

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